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over, be liable to the owner, controller, occupier, or tenant of any such house, boat, float, tenement, or premises, for all damages and costs, legal and extraordinary, which he or she may sustain in consequence thereof. § 25. That if any person or persons shall engage in Who deemed a

common gambler gambling for a livelihood, such person or persons shall be held and taken to be a common gambler, and shall be dealt with as prescribed in this chapter.

§ 26. That whoever shall engage in any game of chance Gaming on the upon the public highway, at which money or property or how punished. other thing of value shall be won or lost, shall, upon conviction thereof, be fined not less than twenty nor more than one hundred dollars.

§ 1. If

wager or bet

tion.

ARTICLE II.

Betting on Elections. any person shall any sum of money R. S., 568.

. or any thing of value upon any election under the Constitu- ting on an election and laws of this Commonwealth, or the Constitution and laws of the United States, he shall forfeit and pay the sum of one hundred dollars, to be recovered by indictment in the circuit court of the county where the bet is made, or in any county where the party so offending may be found; How recovered. and, in addition to the fine aforesaid, if the person winning shall receive the sum of money or other thing so bet, or its value, or anything therefor, the sum of money so received, or the value of anything else so received, shall be forfeited to the Commonwealth, and may be recovered by any appro- The thing bet forpriate action in the name of the Commonwealth, before the monwealth. circuit court or the presiding judge of the county court, wherever the offending party may be found.(a)

§ 2. One half of all fines and forfeitures denounced or Fines and forprescribed in any section of this chapter, after the payment ting on election of proper fees and expenses of the prosecution, shall inure to the benefit of the common school fund, and the other half to the Commonwealth.

(a) Any wager upon the result of an election, no matter in what form it is made, if the real effect intended is, that one party may lose, and the other gain, money or property, according as the election may terminate for or against a particular candidate, is gaming in contemplation of the statute. (Commonwealth vs. Shouse, 16 B. M., 328; see also Todd vs. Caplinger, 4 Bush, 139.)

2. There is no right of action given to the loser to recover back again for his own benefit any thing bet and lost on an election. (Love vs. Harris, 18 B. M., 125.)

fines and forfeitures.

$ 3. Immediately after the fall or last term of the cirDuty of clerk and cuit court, in every year, it shall be the duty of each circuit county judge to report to Auditor court clerk, or county judge, to make out and transmit to

the Auditor of Public Accounts a statement, showing the amount of each fine or judgment recovered under this act, and against whom it is; for which the sheriff shall settle with and account to the Auditor, in the same manner and under the like penalties now provided by law for the collection of the public revenue, one half of which sums shall be placed by the Auditor to the credit of the school fund.

§ 4. That should the sheriff be unable, by reason of the How the sheriff insolvency or removal of any one or more of those against have credit by whom said fines, &c., have been assessed, to make the money,

he shall receive a credit therefor with the Auditor, upon his producing the certificate of the circuit court clerk that due diligence has been used by the sheriff, and that the process which issued against said offenders has been returned not made. The returns of insolvents thus provided for shall be made to the Auditor at or before the time the sheriffs are now required to pay in the public revenue.

uncollect

fines able.

CHAPTER 48.

GUARDIAN AND WARD.

county courts in respect of

ART. I.

Appointment of guardian and curator.
2. Power and duty of guardian.
3. Curator to be appointed for convicts.

ARTICLE I.
Appointment of Guardian and Curator.

$ 1. The several county courts shall have jurisdiction for Jurisdiction of the appointment and removal of guardians and curators to

ap- minors, and the settlement of their accounts. The court of pointing.

county the county in which the minor resides at the time of the apTestamentary pointment shall have the jurisdiction. But if the appoint

ment is made by the will of the father or mother of the minor, then the jurisdiction shall be in the court of the county in which the will was proven; and if the minor be a non-resident, the jurisdiction shall be in the court of that county in which some portion of his real estate may lie; and if he has no real estate, then in any county in which he may have personal estate.

What court.

appointment.

.

respon

§ 2. Any father may, by will, appoint a guardian to his A father's power

of app-intment. infant child during its minority, or for any less period, and may appoint the guardianship of the infant's estate to one, and the custody, nurture, and education of the infant to another.

$ 3. No guardian, except a testamentary one for nurture Guardian not to and education, can act until he has been appointed by the ed by court, and

covenant given. proper county court and given covenant to the Commonwealth, with good surety, approved by the court, faithfully to discharge the trust of guardian.(a)

§ 4. If the court fails to take such covenant, or accepts Delinquency of such person or persons for surety as do not satisfy it of their ders him and his sufficiency, the judge so in default, and his sureties, shall be sivle. jointly and severally liable to the ward for any damage he may sustain thereby.

$ 5. If the will of the father so directs, no security shall No security, rebe required from the guardian, unless from change of cir- directs, unless, cumstances in the guardian since the making of the will, or other cause, the court deems it imprudent to dispense therewith.

$ 6. In appointing a guardian, the court shall pay proper Order of prece attention to the following order of precedence in right, and ing guardian. not depart therefrom, unless it deems that prudence and the interest of the infant so require:

First. The father, or testamentary guardian of his appointing.(6)

Secondly. The mother, if unmarried; and
Thirdly. The next of kin, giving preference to males.

§ 7. If the minor is fourteen years of age, he may, in the Minor over fourpresence of the court, or by writing signed in the presence nate his guardian of one of its judges, after privy examination, nominate his

(a) As to liability of sureties for a guardian to contribution, see note under chapter contribution. (Elbert vs. Jacoby, 8 Bush, 542.)

2. If no bond is taken in the county court upon the appointment of a guardian, the county judge will be responsible on his bond for any estate or funds coming to his hands, and which he fails to pay over to the ward. (Daniel vs. Vertrees, 6 Bush, 4.)

(6) Unless prudence and the interest of the infant should otherwise require, the father is entitled to preference in the appointment of a guardian for an infant. (Gambell vs. Pool, MS. Opinion, 1859.)

2. A testamentary guardian can be appointed by no one except a parent. Any testator may appoint a trustee to take charge of a bequest to infants. (Bush vs. Bush, 2 Duvall, 271.)

3. The subsequent marriage of the mother does not avoid her prior appointment as guardian of her infant child by a former marriage. (Leaville vs. Bettis, 3 Bush, 74.)

4. In the absence of a statutory guardian, the public administrator and guardian may take control of suits which he may find pending, and not being prosecuted for the want of a statutory guardian. (Marshall vs. Marshall, 4 Bush, 251.)

removal, &c.

Curator vested with same powers, &c., as

а

one damaged.

own guardian. But if the person so nominated is not approved by the court, or if the minor, after summons, fails to nominate a suitable person, or resides out of the State, or if the testamentary guardian fails for three months to qualify, the court may appoint a guardian of its own selection.

S 8. During any vacancy in the office of guardian by reaCourt to appoint son of non-appointment, death, removal, or suspension of in case of death,

a guardian, the court may, from time to time, appoint and remove a curator, who shall give a covenant, with surety similar to that required from a guardian.

$ 9. The powers, duties, and responsibilities of such curaguardian. tor shall be the same as those of a guardian.

§ 10. Any one damaged by the act or omission of a guardCovenant of a ian or curator as such, may sue as relator upon his covenant; enforced by any and with the assent of the county court, or of a court of

chancery, any one may sue thereon as next friend of the ward before he has attained full age.

$11. When a guardian shall become insane, move out of When court may the State, become incapable of discharging the duties of his remove a guardian, or permi him trust, or evidently unsuited therefor, the court, being satisto resign his trust

fied that either of the causes aforenamed exists, shall remove him; or when it appears proper, the court may permit him to resign his trust, if he first settles his accounts, and delivers over the estate as by the court directed, and in either case, or upon his death, appoint another guardian.

§ 12. The marriage of a female ward shall operate as a of male and dis discharge of the guardianship, and entitle her to demand a

settlement with her guardian. ianship.

$ 13. The court may also remove a guardian for failing

re- to make a settlement of his accounts as required by law, or to settle accounts as may be required by the court, or for failing to give addi

tional security when required.

$ 14. The court shall annually inquire into the solvency Duty of court to of sureties for guardians; and if at any time it has cause to vency of suretics. believe that the sureties of a guardian are insolvent or in

failing circumstances, it shall, after summoning the guardian, require him to give additional security.

$ 15. Upon the application of the surety of any guardian, When and how and after ten days' notice to the guardian, the court may remay be required. quire him to give counter security to his surety; and on his

failing to do so, remove him or order the estate of the ward to be paid over to a new guardian or a curator.

charges

guard

Court may

move for failure

for failure.

shall contain.

ARTICLE II.

Power and Duty of Guardian. $ 1. A guardian shall, within sixty days after his appoint- Duty of guardian

in respect of inment, return to the court, or to its clerk in vacation, a true ventory. and perfect inventory of the real and personal estate of the ward, signed by him and verified by his affidavit. If other estate shall afterwards come to his knowledge, he shall return a supplementary inventory thereof within sixty days from the time of obtaining such knowledge.

§ 2. For failure to make such return within such times, May be removed the court may remove the guardian.

§ 3. The inventory shall describe the real estate and where What inventory situated, with its probable value, and the probable value of its rent; and also a list of all personal property, including debts due the ward, with the probable value. $ 4. The inventory shall be recorded, and the clerk shall, Duty of clerks in

respect of inven. in the months of January and July of every year, present tories. the court with a list of such guardians as shall have failed to return an inventory or to settle their accounts; and the court thereupon shall summon any delinquent, coerce performance of his duty, or remove him, holding him personally responsible for the costs of the proceeding.

$ 5. A guardian shall discharge the liabilities of the ward Duty of guardian for the debts of his ancestor out of his personal estate; and debts of ancestor when the personal estate, with the rents of the real estate, debts is not sufficient therefor, he may, by petition to a court of his county having equity jurisdiction, obtain leave to sell land for that purpose.

He shall also receive and sue for the debts and demands owing to the ward, defend actions against him, and, with leave of the court, may compound a debt or demand.

§ 6. A guardian shall also have power to sell any of the Power to sell perpersonal estate of the ward. He may lease any real estate real estate. of the ward till the ward shall arrive at full age; but no such lease shall be made for a longer term than seven years. He may also renew any

beneficial lease which the ward may hold as tenant for years, and keep the real estate in proper repair.

$ 7. A guardian shall have the custody of his ward, and to have custody the possession, care, and management of the ward's estate, possession, &c., real and personal, and out of the estate shall provide for maintenance and

of

of his ward, and

due the ward.

education.

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